THE EVALUATION OF 2021 DECISION ON THE INTERNATIONAL CRIMINAL COURT’S TERRITORIAL JURISDICTION IN PALESTINE
Since the establishment of the Israeli occupation state, it is known that it systematically violates human rights and breaches international law in the Palestinian territories, by occupying those territories. Palestine has repeatedly made statements to the international community with evidence, that Israel continues to commit crimes against humanity. Nevertheless, Israel has not faced any significant international sanctions.
Tragically, Israel claimed that the Palestinian side had committed crimes against humanity. Palestine applied to the International Criminal Court (“ICC”) regarding the alleged crimes with motives such as the fact that the dispute attracted more attention in the international community and the fact that the Israeli side to be held accountable, but faced some obstacles in their referrals under the Rome Statute (“Statute”). In 2018, Palestine made the last of its aforementioned referrals, after the request of the ICC Prosecutor, Pre-Trial Chamber ruled that the Court has jurisdiction over the territories which were mentioned in the Palestine’s referral, on 05.02.2021.
In this paper, firstly, the process between the ICC and Palestine before 2018 will be briefly illustrated. After that, the decision dated 2021 will be explained, specifically, what it means and how the possible process is expected to move on.
B.The Referrals by the State of Palestine to the ICC
The first referral by Palestine to the ICC was made on January 22, 2009 by the Minister of Justice of the Palestinian Government. The minister lodged a declaration accepting the exercise of jurisdiction by the ICC for “acts committed on the territory of Palestine since 1 July 2002”. This declaration was lodged according to the Article 12/31 of the Statute. Upon this referral, the Office of the Prosecutor (“Office”) initiated a preliminary examination which should not be inferred as the investigation initiated with the declaration. This stage is only about to determine whether the existence of the criteria required to initiate an investigation in the Statute is met. Regarding this referral –which was submitted prior to Palestine becoming a party to the Statute-, the Office of the Prosecutor stated in its decision of rejection on April 3, 2012 that only a ‘State’ can confer jurisdiction due to the regulation in Article 12 stating that a State Party can accept the jurisdiction of the Court. It was also mentioned that defining the ‘State’ is not within the scope of authority of the Office. The Prosecutor added that this legal determination should be made by the United Nations (UN) or the Assembly of States Parties. Ultimately, this application was rejected on the grounds that the applicant did not have the qualifications that an applicant should have, considering the fact that Palestine was not recognised as a ‘State’ by the UN.
Regarding the recognition of Palestine as a ‘State’ in the international community, particularly the process after April 2012 is considerable within the scope of this article. Firstly, it is a known fact that being accepted as a member of the UN in international law means being recognized as a ‘State’ by the international community. The admission process of membership stipulated in Article 4/2 of the UN Charter; “The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.”
Palestine could not become a full member of UN due to the veto of USA -the member of the United Nations Security Council (Council)- which does not recognise Palestine as a ‘State’ according to international law. Nevertheless, as a result of the decision of the UN General Assembly, with the affirmative votes of 138 states, Palestine was accepted as “non-member observer ‘state’“2. After that, On December 9, 2014, Palestine was accepted as ‘observer state’ by the Assembly of States Parties.
On December 31, 2014, Palestinian President Mahmud Abbas signed the Statute. On January 1, 2015, Palestine, lodged a declaration under Article 12/3, thereby accepting the jurisdiction of the Court over alleged crimes “committed in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014”. Then, On 2 January 2015, Palestine deposited its instrument of accession to the Statute. It entered into force on 1 April 2015 for Palestine, in accordance with Article 126/2.
Following the declaration of January 1, the Office stated that it initiated preliminary examination in accordance with Article 25/1-c of Regulations of the Office of the Prosecutor. In this examination, as mentioned before, only the existence of the criteria -in the Statute required to initiate an investigation- will be determined.
Palestine referred the Situation in the State of Palestine (Situation) to the Prosecutor which is the last referral and the main subject of this paper3. As a State Party, Palestine referred the Situation to the Office, “past, ongoing and future crimes within the court’s jurisdiction, committed in all parts of the territory of the State of Palestine” accordance with Article 13/1-a4 Article 145. The Office firstly completed the preliminary examination and then Prosecutor requested for a ruling on the Court’s territorial jurisdiction in Palestine pursuant to Article 19(3)6.
To briefly refer to the process of the preliminary examination make by the Office in accordance with Article 53, it should be noted that, as mentioned before, the preliminary examination refers to a phase that takes place before the investigation is initiated. There is a four-phase process in the examination7:
In the first two phases, the Office assess the jurisdiction pursuant to Article 53/1-a8 of the Statute. At the outset, all the received information is assessed and filter out information on crimes that are outside the jurisdiction9 of the Court and identify those that appear to fall within the jurisdiction of the Court. In the second phase, it is examined whether preconditions for the exercise of jurisdiction under article 12 are satisfied and whether there is a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court. In this phase, the examination is carried out by considering all the information and documents submitted, which were eliminated in the first phase.
In the next phase, the admissibility of the referral is examined in terms of the complementarity and gravity within the scope of Article 17 of the Statute. In the last phase, it is evaluated whether initiating an investigation accordance with Article 53/1-c will serve the interests of justice. Eventually, the Prosecutor decides whether to initiate an investigation after this four-step examination.
In this context, after the preliminary examination, the Situation is referred to the Pre-Trial Chamber (“Chamber”) by the Prosecutor. Later, the content of the Chamber’s decision10 and evaluations regarding it will take place in the next heading.
C. Regarding the Decision of the Pre-Trial Chamber
The Prosecutor, who made a preliminary examination of the application of Palestine, in accordance with the Article 53/1 of the Statute, stated that there are reasonable grounds that war crimes were committed or are still being committed in the West Bank, East Jerusalem and the Gaza Strip; the situation is complying with the admissibility criteria and there is no indication about the investigation that it would not serve the interests of justice.
In addition to these issues, the Prosecutor also considered the Court’s jurisdiction during the preliminary examination phase. At the request of the Prosecutor, the State party to the Statute pursuant to Article 125/3 shall accepts the Court’s jurisdiction pursuant to Article 12/1, and it has been stated that “The Court’s territorial jurisdiction extends to the Palestinian territory occupied by Israel during the Six-Day War in June 1967, namely the West Bank, including East Jerusalem, and Gaza.’’11 on the basis that the Court can exercise its jurisdiction over the State Party pursuant to Article 12/2. However, the Prosecutor requested that the confirmation of her opinion on the territorial jurisdiction by the Pre-Trial Chamber in accordance with Article 19/3, arguing that the question of Palestine’s statehood under international law does not appear to have been definitively resolved.
The Prosecutor’s Request was examined by the Chamber, taking into account the observations of the investigation, especially the observations of Palestine and Israel. Once finding the request in accordance with the procedural rules and examining the merits of the request, the Chamber basically dealt with two issues, determining whether Palestine is “the State on the territory of which the conduct in question occurred...” listed in Article 12/2-a; and defining the territorial jurisdiction of the Court in the present Situation.
For the first issue, the Chamber, based on the relevant articles of the Statute, stated that while evaluating whether an organization participating in the Statute is a state or not by looking into the necessary procedures, it is not necessary to verify whether it fulfils the condition of being a state under international law; it would be sufficient for the organization to be a party to the Statute in order to be qualified as ‘State’ within the scope of 12/2-a.
It was submitted in the decision that Palestine is a state in line with the purposes of Article 12/2-a. Justifications for this conclusion are that Palestine participated in the Statute with appropriate procedures, the Assembly of States Parties acted in accordance with this participation Palestinian membership is not objected to under article 119/2. In other words, it has been demonstrated that this issue is naturally resolved when Palestine became a party to the Statute and will be approached like other states.
After this examination, the Chamber made an examination on the territorial jurisdiction, which is linked to the first issue in terms of being a party to the Statute. The Chamber -emphasizing that border disputes will not prevent the Court from exercising its jurisdiction- referred in particular to UN General Assembly resolution 67/19 when dealing with the second issue. The Chamber reaffirmed this decision concluding that the Palestinian people have the right to sovereignty over the occupied Palestinian territories since 1967, including East Jerusalem, and that the people have the right to self-determination, and stated that territorial jurisdiction should be considered within the scope of the right to self-determination.
In interpreting of the judgment on territorial jurisdiction, the right to self-determination which is accepted by the international community as a human right, has been taken into account in the decision of the Chamber. Ultimately, in accordance with Articles 13/a, 53/1 and 14 of the Statute; by exercising its right to self-determination, Palestine should be able to transfer its jurisdiction in these territories – which are Occupied territories, including East Jerusalem, Gaza, and the West Bank, under its sovereignty – to the Court and as a natural consequence of this, the Court has the territorial jurisdiction in this situation.
Thus, Israel’s responses, including the claims12 that Palestine cannot transfer such jurisdiction to the Court, as it is not a state that has the right to sovereignty over the lands in question and the associated criminal jurisdiction, regarding this application was rejected by the Chamber. Following this decision, on 03.03.2021, Prosecutor Fatou Bensouda announced that she opened an investigation by expressing that ”discharge the responsibility that the international community has entrusted to it, which is to promote accountability for Rome Statute crimes, regardless of the perpetrator, in an effort to deter such crimes.”13.
It has been decided that the Court has jurisdiction in Palestine, which is accepted as a ‘State’ within the scope of 12/2-a and has the right to self-determination because it is a State Party to the Status. However, the Court emphasized that this decision was not intended for any border disputes, including border disputes under international law and unconnected with the scope of the Palestinian territories.
With the prosecutor’s statement that the investigation will be conducted independently, impartially and objectively and the decision of the Chamber are very crucial as it paves the way for crimes committed in East Jerusalem, Gaza and the West Bank since 2014 to be tried by the ICC. Examples of these crimes are genocide crimes allegedly committed during the Gaza war in 2014, crimes against humanity, war crimes and crimes of assault, war crimes allegedly committed by settlement activities in the Palestinian territories, war crimes allegedly committed during the Great March of Return protests in Gaza Strip. But in the current situation, the commencement and the continuation of trial of Israeli authorities for these crimes and similar crimes which fall within the scope of the jurisdiction of the Court depends on renunciation of the UN Security Council to use the authority14 to request the suspension or postponement of the investigation and/or the case/trial for 12 months in order to protect international peace and security under Article 39 of the UN Charter.
1 Article 12
1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.
2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.
3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the rime in question. (…)
2 General Assembly Resolution, Status of Palestine in the United Nations, 67/19, 29 November 2012.
3 Referral by the State of Palestine Pursuant to Articles l3(a) and 14 of the Rome Statute, 15 May 2018, https://www.legal-tools.org/doc/7b9d1c/.
4 Article 13/1-a:
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:
(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;
5 Article 14/1:
A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.
6 Article 19/3:
The Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility. In proceedings with respect to jurisdiction or admissibility, those who have referred the situation under article 13, as well as victims, may also submit observations to the Court.
7 Policy Paper on Preliminary Examination, 2013, https://www.legal-tools.org/doc/acb906/.
8 Article 53/1
The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:
(a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;
(b) The case is or would be admissible under article 17; and
(c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.
9 Court’s jurisdiction consists of the 4 matters which are in terms of territorial, temporal, personal and subject.
10 ICC-01/18, Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’, 05 February 2021.
11 ICC-01/18-12, Submission of the observations of League of Arab States relative to the Situation in Palestine, 16 March 2020, para. 3.
12 Israel, Office of the Attorney General, The International Criminal Court’s Lack of Jurisdiction over the So-Called “Situation in Palestine”, 20 December 2019, para. 2,7-16.
13Fatou Bensouda’s statement that the investigation has been opened:
14 Article 16:
Deferral of investigation or prosecution
(1) No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.
The authority of the Council regulated in the article 16 has aroused a controversy and has been criticized that this power is political. The Council used this power only once with its Decision No. 1442 of 12 July 2002. Since 2002, the Council has extended the decision for 12 months based on the legal authority of article 16. This usage shows how broad and risky consequences this authority can lead to. See for the Res. Resolution 1422, 12 July 2002, https://digitallibrary.un.org/record/468885#record-files-collapse-header.